A lawyer for Mohamed Harkat says the security certificate process being used to deport the Algerian refugee is unconstitutional.
"The hearing we got was unfair," Harkat co-counsel Norm Boxall told the Federal Court of Appeal on Tuesday.
Harkat, a former Ottawa pizza delivery man, faces removal from Canada under a certificate that declares him a security threat due to alleged terrorist links.
A judge who scrutinized the certificate said Harkat maintained ties to Osama bin Laden's terror network, including Ahmed Said Khadr — the late father of Toronto's Omar Khadr, who has spent years in a U.S. prison at Guantanamo Bay, Cuba.
Harkat, 43, denies any involvement with political extremism.
He says he's simply a refugee who fled strife-torn Algeria and worked with an aid agency in Pakistan before coming to Canada. Harkat argues he will be tortured if returned to his North African homeland.
Unfair to not know details of allegations: lawyers
Boxall told an appeal court panel of three judges the security certificate system is fundamentally unfair because Harkat doesn't know details of the allegations against him.
The Supreme Court of Canada struck down the system five years ago, saying it violated the Charter of Rights and Freedoms.
But the government revamped the process and reissued certificates against Harkat and others in early 2008. A major change was the addition of special advocates — lawyers who serve as watchdogs and test federal evidence against the person facing deportation.
A judge ruled in late 2010 that the retooled certificate system was constitutional. Harkat is challenging that judgment this week.
Boxall argued Tuesday that providing the person named in a certificate a mere summary of the case violates charter principle of fundamental justice.
"He must be given the opportunity to challenge, to contradict," and to contest the case "in a meaningful way," Boxall said.
Information withheld because of national security concerns
He also took issue with the federal refusal to disclose information due to national security concerns. And he said the addition of special advocates to the mix fails to ensure the process is constitutional, arguing they are no substitute for public counsel.
Boxall said the advocates are permitted to work only with the information presented to them and are prevented from initiating their own investigations — even when open-source material differs from the federal case.
"It's better than what we had," he said. "Is it good enough? No."
In its submission to the court, the government argues the disclosure of evidence to a person named in a certificate is sufficient to know and challenge the federal case.
"The presence of special advocates makes the closed proceeding as adversarial as the context permits," says the submission.
"The security certificate regime therefore provides a fair process for assessing whether the named person is admissible and thus satisfies the principles of fundamental justice."
Harkat was arrested more than nine years ago on suspicion of being an al-Qaida sleeper agent.
Though he lives at home with wife Sophie, he continues to wear an electronic tracking bracelet on his ankle, must check in with authorities weekly and cannot leave town without permission.